MR. JUSTICE ANGSTMAN:
Defendant was charged with the crime of perjury, alleged to have been committed in Lewis and Clark County. The information charges that the defendant subscribed to a false affidavit on a claim for a gasoline tax refund dated October 17, 1949, the claimant named being Bothers Incorporated, Seely Lake, Montana. The afidavit is alleged to have been made at Ronan, Lake County, before a notary public. It was specifically alleged that the affidavit contained a false statement to the effect that none of the gasoline on which the refund was claimed was used in any vehicle propelled over the public highways or streets of the state, whereas it is alleged that defendant knew that a part of the gasoline was used for propelling vehicles over the public highways or streets of the state. It is alleged that defendant, after subscribing to the false affidavit before the notary public, submitted it to the Montana [359]*359state board of equalization at the Capitol in Lewis and Clark County, as a true statement of the facts therein contained.
After the state’s evidence was concluded at the trial, the defendant moved for a directed verdict. The motion was granted and the court instructed the jury to return a verdict of not guilty. This was done. The state has appealed fromMhe order of the court directing the jury to find for the defendant. The appeal from such an order is expressly provided for in B.C.M. 1947, section 94-8104.
The order from which the appeal is taken is quite lengthy and need not be repeated in full. It is clear from the order as a whole that the basis upon which it was made was that the State had not proved that the crime in question was committed in Lewis and Clark County. Among other things the court in its order stated:
“It is my opinion, as a matter of law, that if any offense has been proved here, it occurred either in Missoula County or in Lake County. I state that as a matter of law. That is my burden; that is why I am here. I decide the questions of law and you ladies and gentlemen decide the facts. Taking all this evidence together I am satisfied from the way the Information is drawn, that case has to be prosecuted in either Missoula or Lake County, and cannot be successfully prosecuted in Lewis and Clark County. * * *
“It is my opinion, as a matter of law, and I so rule, that this case cannot proceed any further, by reason of the fact that venue has not been proven. For that reason I have granted the motion for directed verdict * *
The affidavit in question appears to have been sworn to before Harold B. Olsson who resides at Bonan in Lake County. His recollection was indistinct as to whether Mr. Bother appeared before him when he signed the affidavit. His usual practice was to take acknowledgments of those only who personally appeared before him and after swearing them. He had no personal recollection as to what took place when this affidavit was signed. The most that we can gather from the [360]*360testimony is that the affidavit, if in fact it were an affidavit, was made in Lake County. How it got from Lake County to the state board of equalization in Helena the record does not reveal.
Contention is made that the affidavit itself was not properly made, a:qd hence, that there can be no crime without proof of a valid affidavit or oath. For the purpose of this case we will assume, without so deciding, that there was in fact an afidavit made sufficient to comply with R.C.M. 1947, section 94-3806.
Where then was this alleged crime committed? Our statute defining perjury is R.C.M. 1947, section 94-3801, which reads: “Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.”
And R.C.M. section 1947, section 94-3802, provides: “The term ‘oath,’ as used in the last section, includes an affirmation and every mode authorized by law of attesting the truth of that which is stated.”
However, under our statute, the crime is not complete until the instrument is delivered by the accused to “any other person, with the intent that it be uttered or published as true.” This is by virtue of R.C.M. 1947, section 94-3809, which reads: “The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.”
As above stated, this record does not reveal how the instrument got to the state board of equalization. If it was accomplished through the mails, then it was either delivered by defendant or some other person to the postal authorities for such delivery. In either case the crime was completed when the affidavit left the defendant with the requisite intent.
[361]*361If the defendant delivered the instrument to some other person in Lake County with instructions to such other person to mail it to the state board of equalization, then the crime was completed when the defendant delivered it to such other person. It seems clear from this record that any crime committed by this defendant was committed in Lake County and not in the County of Lewis and Clark.
This case is not controlled by either the case of State v. Hudson, 13 Mont. 112, 32 Pac. 413, 19 L.R.A. 775, or State v. Cassill, 70 Mont. 433, 227 Pac. 49. The Hudson case involved the crime of uttering a forged instrument and not the crime of perjury. The Cassill case was for making a false report to the superintendent of banks. The statute involved did not provide, as here, that the crime is deemed complete when the instrument is delivered to any other person with the intent that it be uttered or published as true. The rule applicable here is stated in 70 C.J.S., Perjury, section 21 b, page 479, as follows: “Under statutes declaring that the making of a false and sworn written statement of this character is complete when it is delivered by accused to some other person with intent that it be uttered or published as true, the mere taking of the false oath is not perjury, but, in the absence of actual use [by the defendant himself], it must also appear that accused delivered the affidavit with the statutory intent; and the crime is not complete until the verified false statement of accused leaves the hands of its author and is delivered to another person with intent that it be uttered or published as true. * * *”
This is not a case where the crime is committed in more than one county under the record before us. True, had the record shown that the defendant after making the affidavit carried it to Lewis and Clark County and there placed it before the state board of equalization, then it may be the jurisdiction rested in either Lake or Lewis and Clark County. But there is no evidence here that the defendant brought the affidavit to Helena in person.
[362]*362It is a fair inference that either he or someone else mailed it to Helena. But in that case the place where the defendant surrendered the affidavit with the -intent that the same should be mailed and thus uttered or published marks the venue of the action. Seemingly that was in Lake County or at least there is no evidence that it took place in Lewis and Clark County.
The case of People v. Agnew, 77 Cal. App. (2d) 748, 176 Pac.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. JUSTICE ANGSTMAN:
Defendant was charged with the crime of perjury, alleged to have been committed in Lewis and Clark County. The information charges that the defendant subscribed to a false affidavit on a claim for a gasoline tax refund dated October 17, 1949, the claimant named being Bothers Incorporated, Seely Lake, Montana. The afidavit is alleged to have been made at Ronan, Lake County, before a notary public. It was specifically alleged that the affidavit contained a false statement to the effect that none of the gasoline on which the refund was claimed was used in any vehicle propelled over the public highways or streets of the state, whereas it is alleged that defendant knew that a part of the gasoline was used for propelling vehicles over the public highways or streets of the state. It is alleged that defendant, after subscribing to the false affidavit before the notary public, submitted it to the Montana [359]*359state board of equalization at the Capitol in Lewis and Clark County, as a true statement of the facts therein contained.
After the state’s evidence was concluded at the trial, the defendant moved for a directed verdict. The motion was granted and the court instructed the jury to return a verdict of not guilty. This was done. The state has appealed fromMhe order of the court directing the jury to find for the defendant. The appeal from such an order is expressly provided for in B.C.M. 1947, section 94-8104.
The order from which the appeal is taken is quite lengthy and need not be repeated in full. It is clear from the order as a whole that the basis upon which it was made was that the State had not proved that the crime in question was committed in Lewis and Clark County. Among other things the court in its order stated:
“It is my opinion, as a matter of law, that if any offense has been proved here, it occurred either in Missoula County or in Lake County. I state that as a matter of law. That is my burden; that is why I am here. I decide the questions of law and you ladies and gentlemen decide the facts. Taking all this evidence together I am satisfied from the way the Information is drawn, that case has to be prosecuted in either Missoula or Lake County, and cannot be successfully prosecuted in Lewis and Clark County. * * *
“It is my opinion, as a matter of law, and I so rule, that this case cannot proceed any further, by reason of the fact that venue has not been proven. For that reason I have granted the motion for directed verdict * *
The affidavit in question appears to have been sworn to before Harold B. Olsson who resides at Bonan in Lake County. His recollection was indistinct as to whether Mr. Bother appeared before him when he signed the affidavit. His usual practice was to take acknowledgments of those only who personally appeared before him and after swearing them. He had no personal recollection as to what took place when this affidavit was signed. The most that we can gather from the [360]*360testimony is that the affidavit, if in fact it were an affidavit, was made in Lake County. How it got from Lake County to the state board of equalization in Helena the record does not reveal.
Contention is made that the affidavit itself was not properly made, a:qd hence, that there can be no crime without proof of a valid affidavit or oath. For the purpose of this case we will assume, without so deciding, that there was in fact an afidavit made sufficient to comply with R.C.M. 1947, section 94-3806.
Where then was this alleged crime committed? Our statute defining perjury is R.C.M. 1947, section 94-3801, which reads: “Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.”
And R.C.M. section 1947, section 94-3802, provides: “The term ‘oath,’ as used in the last section, includes an affirmation and every mode authorized by law of attesting the truth of that which is stated.”
However, under our statute, the crime is not complete until the instrument is delivered by the accused to “any other person, with the intent that it be uttered or published as true.” This is by virtue of R.C.M. 1947, section 94-3809, which reads: “The making of a deposition or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.”
As above stated, this record does not reveal how the instrument got to the state board of equalization. If it was accomplished through the mails, then it was either delivered by defendant or some other person to the postal authorities for such delivery. In either case the crime was completed when the affidavit left the defendant with the requisite intent.
[361]*361If the defendant delivered the instrument to some other person in Lake County with instructions to such other person to mail it to the state board of equalization, then the crime was completed when the defendant delivered it to such other person. It seems clear from this record that any crime committed by this defendant was committed in Lake County and not in the County of Lewis and Clark.
This case is not controlled by either the case of State v. Hudson, 13 Mont. 112, 32 Pac. 413, 19 L.R.A. 775, or State v. Cassill, 70 Mont. 433, 227 Pac. 49. The Hudson case involved the crime of uttering a forged instrument and not the crime of perjury. The Cassill case was for making a false report to the superintendent of banks. The statute involved did not provide, as here, that the crime is deemed complete when the instrument is delivered to any other person with the intent that it be uttered or published as true. The rule applicable here is stated in 70 C.J.S., Perjury, section 21 b, page 479, as follows: “Under statutes declaring that the making of a false and sworn written statement of this character is complete when it is delivered by accused to some other person with intent that it be uttered or published as true, the mere taking of the false oath is not perjury, but, in the absence of actual use [by the defendant himself], it must also appear that accused delivered the affidavit with the statutory intent; and the crime is not complete until the verified false statement of accused leaves the hands of its author and is delivered to another person with intent that it be uttered or published as true. * * *”
This is not a case where the crime is committed in more than one county under the record before us. True, had the record shown that the defendant after making the affidavit carried it to Lewis and Clark County and there placed it before the state board of equalization, then it may be the jurisdiction rested in either Lake or Lewis and Clark County. But there is no evidence here that the defendant brought the affidavit to Helena in person.
[362]*362It is a fair inference that either he or someone else mailed it to Helena. But in that case the place where the defendant surrendered the affidavit with the -intent that the same should be mailed and thus uttered or published marks the venue of the action. Seemingly that was in Lake County or at least there is no evidence that it took place in Lewis and Clark County.
The case of People v. Agnew, 77 Cal. App. (2d) 748, 176 Pac. (2d) 724, 727, is relied on by the state to sustain its contention that since the affidavit was used or filed in Lewis and Clark County, the venue is in Lewis and Clark County. That case is not comparable to this. It involved a complaint verified by defendant. The verification was made in Santa Barbara County and the complaint was filed in Ventura County. The court held that the proper venue was in Ventura County since that is where the crime was consummated.
The case differs from this in that defendant himself actually filed the complaint in Ventura County. This appears from the opinion wherein it is said: “On the same day [being the day the complaint was verified by defendant] he filed the complaint in the Superior Court of Ventura county.” Then again the court in that case said: “That appellant verified and filed the complaint is an admitted fact.” Obviously then since the complaint was filed by defendant in Ventura County the court properly ruled that the crime was there completed under the facts in that case and that Ventura County was the proper place for the venue of the action.
The case of People v. Robles, 117 Cal. 681, 49 Pac. 1042, has been called to our attention, but in that case the sole question was whether the information stated facts sufficient to constitute an offense. In that ease the court stated that inferences and presumptions of fact might be drawn by a jury from all the circumstances surrounding the making of an affidavit, but we fail to see where the jury would be warranted in concluding that defendant personally delivered the affidavit in question in Lewis and Clark County. True, the instrument ulti[363]*363mately reached Lewis and Clark County, but under the statute, R.C.M. 1947, section 94-3809, the test as to when and where the crime was completed is when and where did defendant part with the possession of the affidavit with the intent that it be uttered and published. Nothing in this record marks that place in Lewis and Clark County.
Our conclusion is that the court was right in holding that venue was not shown to be in the district court of Lewis and Clark County. What the defendant should have done was move the court to discharge him and the jury, as was done in State v. Hendren, 127 Kan. 497, 274 Pac. 274. In other words, when the court had no jurisdiction of the action it was improper to receive a verdict of not guilty. Compare State v. Brown, 47 Ohio St. 102, 23 N.E. 747. However, that would not operate as former jeopardy for the very reason that the court was without jurisdiction of the action, State v. Hendren, supra, and it is the rule generally that an acquittal, in order to bar another prosecution, must be in the county in which the offense was committed. See 22 C.J.S., Criminal Law, section 244, page 379. While strictly speaking the court should have dismissed the action and discharged the defendant rather than to have instructed the jury to acquit him, yet we fail to see where this technical irregularity of procedure affected any substantial right of the state since the plea of former jeopardy or twice in jeopardy is not available to defendant. Likewise to remand the case for a new trial in order to correct this procedural step would avail the state nothing.
We do not consider the question whether there is sufficient evidence to warrant submission of the case to the jury. That question is not before us. The only question here is whether the venue of the action is properly laid in Lewis and Clark County.
Likewise it is of no consequence as stressed in the dissenting opinions that the afifdavit was not actually uttered or published until it arrived at the office of the state board of equalization. It is sufficient to constitute the crime and to com[364]*364píete the crime that the affidavit was delivered by defendant to any other person, including the postal authorities, with the intent that it be thereafter uttered or published. That delivery did not take place in Lewis and Clark County,
Accordingly the order appealed from is affirmed.
MR. JUSTICES ANDERSON and DAVIS, concur.